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Delictual disputes arise when there is no contract underlying the dispute and it is most commonly associated with an act (positive) or a failure to act (omission) and whether or not that act or failure to act is negligent or intentional needs to be considered. Examples of delictual disputes are motor vehicle accidents, which are most commonly associated with a negligent failure to act, such as failing to stop at a traffic light.

Sources of Law

There is no ‘written' or ‘codified' law dealing with delict and it is thus based on what is known as common law, which for all intents and purposes is case law (past decisions by the Courts). The exception to this would be in the case of claims against the Road Accident Fund as there is specific legislation dealing with such claims.

Types of Damages

Damages themselves can be broken down into patrimonial damages, non-patrimonial damages and personal injury claims.

Patrimonial damages are those damages which affect your estate financially, such as having to repair your motor vehicle as a result of someone crashing into it (delict). These damages are relatively easy to quantify as you generally receive invoices and quotations. Your damages will therefore be the amount that your patrimonial estate has been diminished as a result of the wrongdoer's conduct (see Trotman v Edwick 1951 1 All SA 441 (A)). For claims based on patrimonial damages, your legal remedy is the Lex Aquilian action (actio legis Aquiliae).

Non-patrimonial damages (sentimental damages) pose more of a difficulty. These damages are usually a result of an injury to one's personality such as good name, reputation, feelings and liberty and because there is no financial value attached to your feelings for example, it is difficult to quantify these damages financially. There is no specific or exhaustive list dealing with what constitutes an injury to personality or what amounts may be awarded for such an infringement and thus we need to look at case law (the common law) from time to time, which is constantly developing and changing. The Court will ultimately use its discretion, read with past decisions, when awarding these damages. Our Court’s have, to date, taken a conservative approach when awarding non-patrimonial damages. For claims based on non-patrimonial damages, your legal remedy is the Iniuria action (actio iniuriarum).

Personal injury claims are used for losses arising from medical expenses, loss of earnings, pain and suffering, future medical expenses, future loss of earnings and a loss of earning capacity. These damages imply that there must be an actual loss, and thus there must be a diminutions of the plaintiff's estate. Accordingly, this is a form of patrimonial damages and thus the Lex Aquilian action will be used as your remedy.

How to formulate a damages claim

When formulating your damages claim, the following needs to be considered:

  1. What the legal remedy is that your are using.

  2. The Plaintiff has to allege and provide the quantum of damages suffered as a result of the Defendant's wrongful act. If damages are too difficult to prove, the Plaintiff is entitled to judgement upon production of all the evidence that can reasonably be produced to enable the Court to assess the quantum of the loss (see Esso Standard SA (Pty) Ltd v Katz 1981 3 All SA 135 (A)).

  3. Damages can be allocated between co-defendants if the damage was caused by each of them.

  4. You can also claim damages for future damages which you may incur, which is damages for prospective loss and you do not need to be prove on a preponderance of probabilities that these future losses will arise, but rather you need to make an allowance for the possibility of this loss (see Erasmus v Davis 1969 1 All SA 91 (A) & Jowell v Bramwell-Jones 2000 2 All SA 161).

  5. Actuarial calculations can be used but these reports only serve as a guideline and a Court is not bound by such a report.

  6. There is a rule in law called the ‘once and for all rule' which means that the Plaintiff must claim all damages flowing from one cause of action, whether already sustained or prospective (see Evins v Shield Insurance Co Ltd 1980 2 All SA 40 (A)).

  7. The Plaintiff always has a duty to mitigate their damages, thus if you fail to prevent the accumulation of loss the Defendant will not be held liable for such loss (see Maja v SA Eagle Ins Co Ltd 1990 (2) SA 701(A)).

  8. It is important to note that the amount claimed for sentimental damages based on the Iniuria action do not need to be set out in the pleadings. Therefore, you do not need to insert any amount in your Court papers for this kind of damage. As mentioned above, the Court has a discretion when awarding sentimental damages (see Tarloff v Oliver 2004 1 All SA 503). As a point of reference, in a recent case of defamation, the Court awarded the injured party R45,000.00.

Rules of Court regarding Damages Claims

Uniform Rule 18(10) and (11) states that the following needs to be complied with when formulating a damages claims, which states as follows:

"(10) A plaintiff suing for damages shall not set them out in such a manner as will enable the defendant reasonably to assess the quantum thereof: Provided that a plaintiff is suing for damages for personal injury shall specify his date of birth, the nature and extent of the injuries, and the nature, effects and duration of the disability alleged to give rise to such damages, and shall as far as practical state separately what amount, if any, is claimed for:

(a) medical costs and hospital and other similar expenses and how these costs and expenses are made up;

(b) pain and suffering, stating whether temporary or permanent and which injuries caused it.

(c) disability in respect of:

(i) the earning income (stating the earnings lost to date and how the amount is made up and the estimate future loss and the nature of the work that plaintiff will in future be able to do);

(ii) the enjoyment of amenities of life (giving particulars).

(d) disfigurement, with a dull description thereof and stating whether it is temporary or permanent.

(11) A plaintiff suing for damages resulting from the death of another shall state the date of birth of the deceased as well as that of any person claiming damages as a result of the death."


Damages claims should be fully and properly set out, having regard to the Rules of Court. Pleadings should be set out in such a way that allows for the Defendant to fully and properly reply thereto. Damages claims which are not properly pleaded will almost always fail at some point, whether by a barrage of exceptions by an opposing attorney, or by the Courts. Being able to prove your damages is just as important at setting out the damages correctly.

Damages is a remedy for contractual or delictual disputes. Contractual disputes are self-explanatory such as a lease, however delictual disputes are somewhat different and require some explanation. At the outset it is important to note that to overcome the onus of proof in claims relating to damages, such damages need only be proved on a preponderance of probabilities, namely that it is more likely that they did occur than that they did not.

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